I spent the last few days wandering around the Hill chatting with some of the few MPs who hadn’t made a beeline for the airport on Thursday night, asking them about what the opposition’s endgame on the detainees documents issue was. So Parliament has commanded the government to produce the documents. What next? One NDP MP said to me on Thursday that the government would hand the documents over, no question. I asked him what would happen if the government refused. He said it couldn’t happen because “parliament is supreme”. End of story.
Well, yesterday the government said, effectively, “come and get them.” So again, opposition, what next? A Liberal MP, fresh from doing a TV hit about the detainee issue, told me she actually had no idea what the next step was. Does the Speaker put Peter MacKay in stocks? Does he send the Commons police or RCMP to break down doors and confiscate documents? Or does it – as Norman Spector suggests – end up in the courts, with the judiciary ruling on parliamentary privilege?
Another complication is that the House of Commons isn’t sitting for another five weeks. The special committee on Afghanistan is still sitting next week, but as our their Kady tells me, they can meet, they can pass a motion to get a Speaker’s warrant, but after that, it’s all unprecedented. Besides, who would be summoned to the Bar, since Ministers can’t be compelled?
The opposition needs to be very, very careful how they play this. First of all, it isn’t clear how far the public is willing to let the opposition push this. The Tories looked bad in Parliament these past weeks, lobbing ridiculous accusations at the opposition and acting as if they had plenty to hide. But it isn’t clear how far public toleration will extend if it comes to the forced production to the Commons of secret documents. The government will yell and scream about the opposition helping our enemies and harming our soldiers and undermining our allies, and a lot of people will find it a reasonable line of complaint.
More worrisome still is that, based on a dim Walter Bagehot-era reading of the constitution and a jumped-up sense of the Commons as the supreme court of the land, the opposition seems bent on pushing Parliament into another crisis not dissimilar to last fall’s. There are not a lot of useful precedents for any of this, and a compromise seems in order. It is what the Speaker clearly wants, and what both sides should be working toward behind the scenes.
So here’s a proposal: When Canada joined the first Gulf War, Brian Mulroney appointed Audrey McLaughlin of the NDP to the privy council (Chretien was already a member). That way, they could both receive Cabinet-level briefings and have access to otherwise secret documents. This was very smart, politically: It gave the Opposition leaders access, at the price of not being able to disclose the information.
So one possibility would be for the government to offer to appoint three opposition members of the Afghan Committee to the privy council, and let them see all the relevant documents? Dosanjh and Rae are both already members. So why not add Paul Dewar of the NDP, and someone from the Bloc. That last suggestion is obviously a problem for federalists, but it also a problem for separatists. Who would be co-opting whom?
But as Spector and Kady both remind me, the problem with this proposal is that these new privy councilors couldn’t make use of this info on the committee, so it might not get them too far.
(UPDATE: Also, the more I think about this — and the more feedback I get from people smarter than I — the less plausible this seems. The Gulf War analogy doesn’t really work since the the point of the swearing in was prospective, not retrospective, while the Afghan committee has a political, not judicial, agenda.)
So if anyone has any other suggestions for a compromise that might be struck here, let’s hear it.
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